Thu, 22 Jun 2017 10:47:57 +0000
By CHARLES MUSONDA
HAKAINDE Hichilema and five others have been transferred back to Lusaka Central Prison from Kabwe’s Mukobeko Maximum Security Prison where they have spent the last 12 days. This was after Lusaka Magistrate Irene Wishimanga re-affirmed her earlier order yesterday.
And lawyers representing Minister of National Guidance and Religious Affairs Godfrida Sumaili say Hichilema’s contempt of court complaint against her is not competently before court.
Ms. Wishimanga said her order dated June 15, 2017 must be obeyed because there were serious consequences of disobeying it.
She said the State must apply to court over serious security concerns the Zambia Correctional Service (ZCS) had over remanding the accused persons at Lusaka Central Prison.
Ms. Wishimanga said she would wait for the said application to be filed in court and would consider varying her order after hearing the application by the State.
She said this after lead defence lawyer in the treason case Vincent Malambo asked her to read her order in relation to the place of remanding the accused persons because the defence team wanted to have access to their clients.
In response, Principal State Advocate Gamaliel Zimba said the ZCS had concerns which it wished to raise with the court regarding the order.
“They (the ZCS) are desirous that the same way the order was issued ex-parte in chambers they should be heard. They have security concerns and I beg this court to allow the ZCS to be heard,” Mr. Zimba said.
Earlier, Ms. Wishimanga dismissed the submission by Hichilema’s lawyers for Rev. Sumaili to take plea before the issue of the Director of Public Prosecutions takeover of the contempt of court case could be considered.
One of Hichilema’s lawyers Keith Mweemba argued that powers of the DPP were limited and could be challenged in court according to the Constitution and the precedent set by Judge Chalwe Mchenga in the case of the People versus Fred M’membe initiated by former President Rupiah Banda. But the State and one of the lawyers for Rev. Sumaili Lubinda Linyama urged the court to refer the issue of challenging the DPP’s powers to the Constitutional Court in line with the new Republican Constitution.
Meanwhile, in their written submissions filed in court yesterday, Rev. Sumaili’s lawyers Eric Silwamba and Mr. Linyama said the Magistrate’s Court had no jurisdiction to determine the Constitutional question of whether the DPP’s takeover could be questioned and the correct forum for such determination was the Constitutional Court.
“In any event, the Supreme Court of Zambia, which is the final Court of Appeal in this jurisdiction, has pronounced itself on the powers of the DPP in a plethora of authorities…we submit that in this jurisdiction, the powers of the DPP, as the Chief Prosecutor of the Government and Head of the National Prosecutions Authority, cannot be questioned save for proceedings in Courts Martial,” they said.
They added that the purported charge sheet against Rev. Sumaili was defective because it was only signed by Hichilema but it contained five other names: Hamusonde Hamaleka, Muleya Hachinda, Laston Mulilanduba, Pretorius Haluba, and Wallace Chakawa.
“We submit that even before the enactment of Article 180 of the Constitution of Zambia (Amendment) Act number 2 of 2016, a person could not institute criminal proceedings by proxy. We submit that when there was more than one complainant then all the intended complainants were required to sign the complaint.
“The purported charge sheet does not disclose where the purported criminal offence was committed…the charge sheet merely states that the Honourable Minister was speaking on Zambia Blog Talk Radio.”
